Page 160
The same Term in the Kings Bench. Pack versus Methold in a Writ of Error.
IN Mich. Term, 22 Jac. Methold brought an action upon the case in the Common Pleas against Pack, and declared that in consideration that the Plaintiff would pay to Playford 52 l. 14 s. to the use of the said Pack, such a day, &c. Pack promised to deliver to him his Bond (in which he was bound to him in the said summ) when he should be therunto requested: And shews that he had paid, &c. and the Defendant did not deliver to him the Bond, al∣beit the same to do he was afterwards often times requested, and upon non assumpsit pleaded, it was found for the Plaintiff, and now it was moved in Arrest of Iudgment, because the request is not laid specially, nor the day nor place therof expressed. But the Court, to wit, Hobart chief Iustice, Hutton and Harvey gave Iudgment for the Plaintiff, and yet they agreed, that if he had demurred upon the Declaration, it had not been good, and also that if it had been generall, Licet saepius requisit, it had not been good, in as much as it is parcell of the promise, and therfore ought to be said substantially; viz. That it was after the promise and payment of the 52 l. but the time is sup∣plied by these words Postea, and there is no defect but in the place, and (Po∣stea) implies that it was after the promise and payment.
And Hobart said, that all the points of the Declaration which have mat∣ter and substance are good, only there wants the place where the request was made, which by the Issue is moved, and the request is here well notified to the Court, and the defect of the place is now helped by the Statute.
Hutton said, that if the promise had been to pay so much upon request at Ea∣ster, there the day ought to have been shewn, and (Postea) had not been suf∣ficient, but here the Postea refers only to a thing wherby it is certain; and he said, that upon this Issue such a request shall be given in evidence.
Harvey said, that the request being here laid as it is, the Court may well give Iudgment: And it seemed to Hobart that such a request cannot be gi∣ven in evidence where the Issue is upon an Assumpsit: And Iudgment was given for the Plaintiff; and afterwards a Writ of Error, Hill. 1. Car. * 1.1 was brought in the Kings Bench, and the opinion of the Court was strong∣ly, that the Plaintiff ought to have alledged the request specially and ceriain∣ly in time and place, because it is traversable and parcell of the Assumpsit, and not to be done but upon request.
Jones Iustice remembred divers Presidents in the point, and further day was given to bring in Presidents of either side, and two Presidents were produced according to the opinion of this Court, Scil. Pasch. 30 Eliz. Rot. 464. in 1. Court, Old and Estgreens case, Trin, 16 Jac. Rot. 268. Wales case.
But in Debt Licet saepius requisit is sufficient, for it is not materiall nor traversable, for the bringing of the action of Debt (which is a Precipe) is a sufficient demand in it self, and afterwards at another day the Court con∣tinued of the same opinion, and therfore the Plaintiff in the first action brought a new action, Quod nota, for albeit the Defendant had pleaded non assumpsit, and Issue was joyned upon it, yet this did not amend the evill laying of the request, according to the Presidents abovesaid.